Washminster

Tuesday, 27 April 2010

I was horrified to read the following headline in last Tuesday's Guardian "Lap-dancing clubs may take cases to EU Court". My objection isn't to taking cases to court (although challenging an Act of Parliament - in this case the Policing and Crime Act 2010 - offends me as a constitutional lawyer - Parliament is sovereign in the UK - and I want decisions made by my elected representatives, rather than by unaccountable judges). The owners of lap-dancing clubs want to challenge the legislation, claiming that their rights under Article 1 of the first protocol of the European Convention on Human Rights to "the peaceful enjoyment of (their) possessions" are infringed by the requirement to apply for new licenses - and potential closure of their premises where they are located near churches or schools.

My horror arises from the fact the a paper I respect, The Guardian, has confused the European Court of Justice (EU Court) with the European Court of Human Rights. Law students who confuse the two tend to see their assignments or examination essays attracting a FAIL grade for such a fundamental error.

The European Court of Justice sits in Luxembourg. It is the Court for matters relating to the European Union - which has a membership of 27 countries. The EU website can be accessed here - and the ECJ website here. The EU began in 1951 with the Paris Treaty which Formed the European Coal and Steel Community. The additional communities of the European Economic Community and Euratom were formed in 1957 - and the three became known first as the European Communities; then the European Community - and now is known as the European Union.

The European Court of Human Rights sits in Strasbourg. It exists to give rulings on the European Convention on Human Rights. It was the product of the Council of Europe - a body now consisted of 47 members (so much larger than the 27 member EU). It includes the Russian Federation; Turkey, Switzerland, the Ukraine, other non-EU members and micro-states such as Andorra and Monaco. It was founded in 1949 - and the European Convention on Human Rights was drafted in 1950. Britain has been a member of the Council of Europe from the start and played a key role in drafting the Convention.

Sadly the British media often makes this basic error of confusing the two. But it is little wonder that euromyths gain such a hold in Britain - when even the serious press can't get their facts straight.

Monday, 26 April 2010

Washington DC is a city of monuments - to ordinary men and women who did extraordinary things - and to some of the giants of world history. It is hoped that a new memorial can be built to both honour, and educate new generations about, Dr Martin Luther King. The site would be on the National Mall, on the tidal basin across from the Jefferson Memorial - dedicated to the man who wrote the words of the Declaration of Independence "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Dr Martin Luther King worked to apply those words to all people.

I had the privilege during our holiday in Georgia to visit the Ebenezer Baptist Church and The King Center in Atlanta. Both the man, and the principles he stood for are inspiring. I hope the monument can be built in Washington. The trust which is seeking to raise the funds has prepared a video showing what it should look like.

President Obama has spoken about the role Dr King played -

Further details of the Memorial - and how you can help to achieve the dream of a permanent memorial on the Mall - can be found at http://mlkmemorialnews.org/

Saturday, 24 April 2010

Only if you live in Kirkcaldy & Cowdenbeath in Fife, Scotland (where Gordon Brown is the Labour Candidate); Witney in Oxfordshire (Cameron, Conservative) or Sheffield Hallam (Clegg, Liberal Democrat)! In Britain we chose a national government by electing candidates in each of the 650 constituencies. The prime Minister is NOT directly elected, as the US President is.

Party identification remains much greater in the United Kingdom than in the United States. I would love to imagine that the 15,895 people who put a cross next to my name on their ballot papers in Blaby voted for me - but I know that most of them were voting Labour. They wanted Tony Blair to be the Prime Minister more than they wanted me as their MP!

Friday, 23 April 2010

As a Constitutional Law Lecturer, I have to explain to my students that while Britain doesn't have a single written document called "The Constitution" - it does have a 'constitution' in the sense that there are constitutional rules which govern the way Britain is ruled. These are found in Statutes; case law; conventions; internal rules governing the procedure and practice within Parliament; and in authoritative works, such as those by A V Dicey.

No one is in any doubt that recent years have seen major changes to that 'constitution'. The Human Rights Act alters fundamentally how rights are protected in the UK. Previously - everything was legal, except where it had been made illegal. Now rights, set out in the European Convention of Human Rights, are made part of English law - and are enforceable through the Courts. The House of Lords has been partially (but significantly) reformed; Devolution has given powers to Scotland, Wales, Northern Ireland and London. Referenda have become established and new voting systems are now in regular use.

Vernon Bogdanor describes and analyses these changes in his 2009 book "The New British Constitution". I have recently been re-reading this book. It is a useful tool both for students of British Constitutional Law - and for those seeking to improve the current political system. Details of the book are available here.

Thursday, 22 April 2010

The searchable archives of C-SPAN are now available at http://www.c-spanvideo.org/videoLibrary/. Every C-SPAN program aired since 1987, now totaling over 160,000 hours, is contained in the C-SPAN Archives and immediately accessible through the database and electronic archival systems

Wednesday, 21 April 2010

Every candidate for the UK General Election will have had to provide a deposit of £500, which was payable before the close of nominations (4pm yesterday). This will be returned only if theygain more than 5% of the total valid votes cast in the constituency. Some individuals will have provided the money themselves, but most will come from the national party organisation.

The Electoral Commission has stated that "Payment may be made by legal tender. Payment may also be made by a banker’s draft from a drawer (i.e. a bank/building society) which carries out business as a banker in the UK.

The (Acting) Returning Officer has a discretionary power to accept alternative forms of payment, such as credit or debit card or the electronic transfer of funds. You or your agent should always check with the (Acting) Returning Officer as to the acceptable methods of payment. If card or transfer payments are accepted, they must have reached the (Acting) Returning Officer’s account by the close of nominations, otherwise your nomination will be ruled invalid.

If the (Acting) Returning Officer allows the deposit to be paid by credit or debit card, there may be a fee charged by the bank or credit card company for the transaction, in which case you will be required to pay any additional fees as well as the £500 deposit."

In response to a Freedom of Information Act Request, the Electoral Commission reported that"The number of deposits lost by parties or individual candidates at the 2005 UK Parliamentary general election was 1,385. The deposit required was £500, making the total amount of the lost deposits £692,500." There were 3,546 candidates in total.

Even if the deposit is lost - it has bought some value. All candidates are entitled to

free postage for one election communication to electors in the constituency.

Tuesday, 20 April 2010

Good evening ladies and gentlemen. I’ve called this talk ‘So what is the problem?’ It will be a very familiar question if you have teenage children, but in this case it is not meant rhetorically. Most people do think there is quite a serious problem with the way we are governed, and that view is not confined to so-called ‘ordinary voters’. Much of what used to be called ‘the establishment’ – judges, senior civil servants, distinguished academics and so on – now think the same, and since the expenses scandal even politicians seem to agree that something is badly wrong.

However it seems to me that there is much less agreement about whether the problem lies with the constitution itself – that is the architecture of laws and conventions which define the structure of government – or rather with the conduct of government, that is the way that politicians actually behave. I thought one of the most interesting things about the expenses scandal was the way the leadership of all the political parties responded to what was really a fairly straightforward failure of conduct with all manner of proposals for structural change, as if fixed-term parliaments or an elected House of Lords were an obvious remedy for MP’s financial misbehaviour.

There is also rather little agreement amongst those who do advocate structural constitutional reform about what specific further changes should be made. I say further, because if you take Scottish devolution, the effect of various EU treaties, the Human Rights Act, the exclusion of the hereditary peers and the establishment of the Supreme Court, we have arguably seen more constitutional change in the last twelve years than in any previous period since the Civil War.

Despite this lack of consensus about the detail of reform, I think one can see three broad threads running through the arguments. The first is the idea that we are suffering from a ‘democratic deficit’, in other words that your vote doesn’t really count and that MPs are not properly accountable to the people who elected them. The second is the concern that government has become too dominant and too pervasive, and that ordinary citizens now have too little control over their own lives. The third is the view that our so-called unwritten constitution is no longer fit for purpose and that we need a codified, embedded constitution of the type found in virtually every other modern democracy.

Now there is clearly some truth in these propositions – they would not be so widely supported otherwise – but I want to suggest tonight that all three are also double-edged, and that the reality of our current predicament is actually rather more complex.

Let us look first at the idea that we need more democracy. Well, if ‘more democracy’ means voting for more things then we are actually moving in the right direction. In the 1970’s Londoners had only two opportunities to vote – for their Westminster MP and their local borough councillors. Today they can in addition vote in elections for the European Parliament, the London mayor and the London assembly: five separate votes in total.

Confusingly, all five of these elections are conducted using different voting systems. Only elections for Westminster still use the traditional ‘first past the post’ system, and this has of course itself been a target for reformers for at least the last forty years. It is quite true that first-past the post does produce perverse and apparently unfair results. For example in the 2005 general election Labour won 35% of the popular vote but ended up with 55% of the seats in parliament. It also effectively disenfranchises voters in the many hundreds of safe seats where the result is a foregone conclusion.

There is not time tonight to talk about all the various alternative voting systems, but they have one thing in common which is that they are more likely to produce coalition governments. Now you may think that is quite a good way of keeping politicians in check – and interestingly there was a poll over the weekend which showed over 50% positively in favour of a hung parliament. However it is also an unavoidable feature of coalition government that policy is negotiated in back-room deals between the parties after the election result is known: that is what happens in most European countries. The problem with that is that it is much harder to vote for decisive change, which arguably has a different but equally undesirable disenfranchising effect.

Another point that is often made is that MPs live in a gated Westminster community and are out of touch with ordinary voters. Now there is of course some truth in that, but it’s also true that a typical MP now spends up to 40% of his time dealing with complaints from individual constituents - the great majority of them about housing and benefit issues - something which would have been unimaginable a generation ago. And while MPs have become ombudsmen, who is scrutinising and debating the torrent of new legislation which governments now introduce?

The answer is the House of Lords, which now perversely plays a rather effective revising role, despite the fact that its members are of course unelected. Here I would suggest is a situation in which ‘more democracy’ would be a positively bad thing, because an elected House of Lords would quite likely be as useless as the Commons as an effective legislative body and as much under the control of the Party whips.

Let us now look at the widespread view that that government has become too powerful, and that this process has accelerated under New Labour. Well again I would suggest the picture is actually rather less clear cut. On the one hand, we have certainly seen a major extension of petty regulation into many areas of everyday life, some of it home grown but much of it emanating from Brussels. It is also true that, since 9/11, we have seen a very significant increase in the powers of the state in relation to terrorism. It is a matter of opinion whether this raft of new security legislation was necessary or proportionate to the actual threat, but it has unarguably resulted in a significant reduction in individual liberties.

However the Blair government also reduced the scope of government authority in quite significant ways, by establishing the Scottish Parliament and the Welsh Assembly, with the Freedom of Information Act (2000) and with the incorporation of the European Convention on Human Rights into British Law. None of this looks like the work of an authoritarian administration. And meanwhile power over large areas of British life continues to trickle away from Westminster across the channel to Brussels, regardless of the policy of the any British government.

So while ministers and officials often have an unattractively bossy manner, I am not convinced that government has become systematically more authoritarian. Indeed a better diagnosis may be that government has become significantly less effective – a point to which I will return later.

Thirdly, let us look at the argument for a unified, written constitution. We are one of only three parliamentary democracies without one – New Zealand and Israel are the other two – so to that extent the current position is certainly anomalous. It is not the case that none of the British constitution is written down – there are a number of statutes dating back to the Bill of Rights which are generally agreed to have a constitutional authority- but the constitution also contains significant customary elements. Customs and conventions are by their nature evolutionary, and open to re-interpretation in different generations. There are some good arguments in favour of this flexibility, but the other side of the coin is that we lack is a clear body of fundamental law which binds future governments and which cannot easily be changed. Now if you are concerned about the theoretically unlimited authority currently enjoyed by a government with a parliamentary majority, that sounds like a very undesirable state of affairs.

However the introduction of a proper written constitution would have one unavoidable consequence: someone will have to decide whether new legislation or government actions are ‘unconstitutional’, and that someone is the judges. So, as happens in the United States, a new government with a strong popular mandate may find its legislation frustrated by a handful of unelected judges. And in such a system, the longevity of individual judges can become the principal determinant of significant areas of policy: the history of US Supreme Court rulings on abortion since Roe v Wade (1973) is a textbook example.

All the same, I do think it is possible that a broad consensus in favour of a written constitution may emerge over the next few years. However it is much less likely that there will be agreement about what such a constitution should contain, and even if some future constitutional convention did thrash out an agreed draft, it’s quite possible that it would be rejected by a subsequent referendum. One can quite imagine the whole process being diverted by irreconcilable differences over a few emotionally charged issues like the status of the monarchy and the disestablishment of the Church of England.

So I am on the fence about this: I quite agree that there are aspects of the existing arrangements which are far from perfect, but I’m not yet convinced that a written constitution, even if it were achievable, is the answer.

So let me come to my final point. I drew a distinction at the beginning of this talk between structural - that is constitutional – deficiencies and deficiencies in the conduct of government. As I’ve tried to show, I do not believe that the advocates of further major constitutional change have yet made a convincing case. I do however believe that there is a strong and urgent case for a reform of government behaviour.

As I see it, New Labour came to power to 1997 with one overwhelming priority, which was that they should never lose another election, and this objective has consistently taken precedence over any other issue of domestic policy. As a consequence, government in the proper sense seems to have been replaced by a continuous marketing exercise – in effect a perpetual election campaign - whose aim is to dominate and control the media agenda. That is why we have had this constant stream of policy initiatives, and re-announcements of existing initiatives, and an unprecedented tidal wave of new legislation. One new criminal offence has been created for every day that Labour has been in power. Much of this legislation is sloppily drafted, it is whipped through the Commons with the minimum of debate on a government-imposed timetable and it is quite frequently superseded by a new piece of legislation on the same subject before it has even been implemented.

And I have no reason to think that a Conservative government, given a large enough majority, would behave any differently. The problem - and it may be the single biggest problem of contemporary democracy - is that all politicians are terrified of losing power, because the lesson of the last 30 years is that once you’ve lost power you don’t get it back for a generation. And that is a particularly horrifying prospect for career politicians who are unqualified for any other type of gainful employment. The result is that we end up with highly centralised Party machines in which the leader takes all significant decisions, assisted only by a very small circle of advisors who are not policy experts but masters of marketing and media manipulation. And - since any evidence of disunity, or any admission of error, is thought to be electoral suicide - any debate, any questioning of the current policy line, in Cabinet or in the Commons or from civil servants or independent experts is ruthlessly suppressed. The result is that we have ended up with a style of government which is simultaneously mendacious and ineffectual. And that, ladies and gentlemen, is, I suggest, the problem. Thank you.

Last night I attended a debate in London on Constitutional Reform. Three views were expressed by panel Speakers - that we should leave well alone; that the whole 'British Constitution' should be "torn up and we should start again from scratch" - and that there is a need for a major review.

The third view was put forward by Nat Le Roux. His speech can be viewed below -

The summing up

The Constitution Society is an independent educational trust seeking to promote understanding and debate about the British Constitution. It has a website which provides some very useful resources. - http://www.re-constitution.org.uk/

Today is the day day for nomination as a candidate for the UK General Election. As well as providing details of the candidate and the agent, it is necessary to have a nomination form signed by 10 voters from that constituency. These are known as "subscribers".

Collecting signatures for the General Election is usually straightforward - but there can be difficulties. Agents must ensure that everything is in order before the forms are submitted. The Electoral Registration Officer will advise on any problems - but the deadline must be met. For that reason most nomination forms will already have been submitted. In a local election a few years ago (where there is also a 10 subscriber rule), I agreed to stand as a 'paper candidate'. I got the 10 signatures - but one of my subscribers forgot to tell me she had also nominated the Conservative candidate. When my forms were handed in (I wasn't around - as I had to rush across the country to where a relative was very ill) - the list was rejected because the subscriber had already been accepted as a subscriber for the Conservative candidate. There was no time to get a new list - and so I couldn't stand!

The Electoral Commission has produced a detailed book for candidates and their agents on the process. It is available here.

Monday, 19 April 2010

Tomorrow is the last day for registering to vote in the 2010 General Election. In the UK, in theory, everyone should be registered. Every year the Electoral Registration Officer for the area (usually the District/Borough Council) sends to every residential property a form which the head of household is required to fill in and return. Failure can result in a fine of up to £1000. In practice a number of people fail to return their forms. Electoral Registration Officers do seek to chase up unreturned forms - and much effort is put into getting as accurate an electoral roll as possible. However this is an impossible task. People move homes during the year. It is now possible to have your name added after the annual canvass (hence tomorrow's cut off date), but registration is often not the first priority. Some people try to avoid being registered - out of fear that they may be traced by creditors or others. The Poll Tax of the late 1980s encouraged many people to get into the habit of not registering.

When the register is published, it comes in two forms. "Anyone can look at the full version of the register under supervision but it can only be passed on for certain purposes. These are electoral purposes, law enforcement and by credit reference agencies. Use by credit reference agencies is only to check your name and address if you are applying for credit and to help stop money laundering." A partial version can be bought by anyone and used for any purpose - but "you can choose not to be on it by ticking the opt out box on registration form."

In the UK you register as an elector - but do not, as in the US, have the option of registering as a voter for a particular party. In the US this is important for determining eligibility for voting in primaries.

Only people on the electoral register can vote - and unless you have a postal vote - you may only vote at the specified polling station (which is why it is important to advise the Electoral Registration Officer of a change of address).

For further information you can access the Electoral Commission's website about the electoral register here.

If you haven't yet registered go to this site now. Tuesday 20th April is the last day!!!

Saturday, 10 April 2010

In the last European Election I was a candidate for the East Midlands region. This year the region is vital to the outcome of the General Election. Labour holds a number of seats which are on the Tories target list. In addition there are local factors which may lead to surprise results.

Northamptonshire has the key seats of Corby (3.1% majority) and Northampton South (old Constituency was held by the Tories - but has a notional Labour Majority of 3.8% because of the boundary changes) Northampton North ( 9% majority).

Leicestershire has the seats targeted by the Tories of Leicestershire North West (David Taylor, who died in December, had held this seat since 1997 (9.5%) majority and Loughborough (where Andy Reed and Nicky Morgan are again contesting the seat. Labour has a 3.9% majority)

In Derbyshire there have been many boundary changes - and there will also be open seats as a result of retirements.

Labour held - but open seats (no 'incumbent' standing)

High Peak - 3.8% majority

Derbyshire South - 5.5% majority

Derby North - a Lib-Dem target seat (no 50 on their list)

Erewash - 15.7% majority

Nottinghamshire - The local paper reports that the Tories are targeting five seats - Broxtowe (4.4% majority) and Gedling (9.6% majority) and the "open" seats of Nottingham South, Sherwood & Ashfield. Ashfield is being targeted by the Lib-Dems. The Nottingham Post article is available here.

Thursday, 8 April 2010

The General Election was held on 6th December - and the Governing Conservatives lost 86 seats (and its majority). It remained however the largest party. The Results were -

Conservatives 258 (previously 344 seats)

Labour 191 (previously 142 seats)

Liberals 158 (previously 62 seats)

Britain therefore had a "hung Parliament"

Parliament first met on 8th January - for the election of the Speaker. A few days were available for MPs and Peers to take the oath. The King's Speech was delivered just after midday on 15th January. The debate began formally that afternoon - then the debate was conducted with vigour on 16th, 17th, 18th & 21st January.

The motion (as usual) was - That an humble Address he presented to His Majesty, as followeth: Most Gracious Sovereign, We, Your Majesty's most dutiful and loyal subjects, the Commons of the United Kingdom of Great Britain and Ireland, in Parliament assembled, beg leave to offer our humble thanks to Your Majesty for the Gracious Speech which your Majesty has addressed to both Houses of Parliament

BUT an amendment was put down

"to add the words But it is our duty respectfully to submit to your Majesty that Your Majesty's present advisers have not the confidence of this House"

The amendment passed - Ayes, 328; Noes, 256

The following morning the Prime Minister, Stanley Baldwin, tendered his resignation to the King. He told the Commons -

"I beg to move, That this House do now adjourn until Tuesday, 12th February. As the result of the vote which took place in this House last night, the Government have tendered their resignation to the King, and His Majesty has been graciously pleased to accept it. [An HON. MEMBER "Thank God for that!" I Members of the Government will retain their Seals until the new appointments have been made, and it only remains for me to tell the House that the date was arrived at to suit the convenience of the incoming Minister."

The new Government was formed by Ramsey MacDonald - and this became the first Labour Government. It did not form a coalition with the Liberals. As a minority government it was vulnerable - and on 8th October a vote of censure was passed - Ayes, 198; Noes, 359. Ramsey MacDonald asked for a dissolution - and a second election was held on 29th October 1924.

Wednesday, 7 April 2010

Now that the election has been called, Civil Servants are in what is referred to as "purdah" (also known as 'the pre-election period'). Guidance is issued by the Cabinet Office to all civil servants as to what is allowable. This year there are also local elections on 6th May, so employees of local authorities facing elections also jhave their own period of 'purdah'.

An excellent Standard Note from the House of Commons Library is available here.

Should the result of the election be unclear, 'purdah' will continue until it is clear that a new government can command a majority in the House of Commons. This is usually when a vote of confidence has been held after the Queen's Speech.

Very busy in the Palace of Westminster - can hear the helicopters buzzing around the area - a sign that things are happening.

Press reporting that Cabinet Meeting underway - with Brown expected to go to Buckingham Palace within the hour. Also reported that the Queen has returned to Buckingham Palace from Windsor Castle. (helicopter landing now)

Hansard Society has published booklet on hung parliament, available to download here.

The media is reporting that this morning the Prime Minister will ask the Queen to dissolve Parliament. Upon his return he will make a formal announcement that the election will be held on May 6th. Parliament will return from the Easter Recess, and will enter the "washup". A copy of the interesting and informative Standard Note (House of Commons Library) is available here.

Once work has been completed, Parliament will be prorogued (as happens at the end of every (annual) session. It will then de dissolved by Royal Proclamation.

About Me

An experienced lecturer, tutor & researcher with practical experience of working in the UK and European Parliaments.
I have a keen academic and practical interest in the workings of both the UK Parliament and the US Congress.
Over the years I have broadcast on both UK & US Politics for BBC local radio stations.